Volcom Inc v. Roc Nation LLC

Filing 18

STIPULATED PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm: (see attached) (jm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION 9 10 VOLCOM, INC., A Delaware corporation, 11 Plaintiff, 12 v. 13 14 ROC NATION, LLC, a Delaware corporation, 15 Defendant. 16 17 18 19 20 Case No.: SACV 11-00489 JST (FFMx) DISCOVERY MATTER [PROPOSED] STIPULATED PROTECTIVE ORDER NOTE CHANGES MADE BY COURT Pursuant to Federal Rule of Civil Procedure 26(c), the Court, having considered the parties’ request for a Protective Order, hereby ORDERS AS FOLLOWS: GOOD CAUSE STATEMENT OF THE PARTIES This litigation involves Plaintiff’s allegations that Defendant’s Red Diamond 21 Design logo infringes Plaintiff’s Stone Logo trademark. Discovery will likely require 22 examination of documents, data, and information which the parties assert is highly 23 confidential. Disclosure and discovery activity in this action are likely to involve 24 production of confidential, proprietary, or private information for which special 25 protection from public disclosure and from use for any purpose other than prosecuting 26 this litigation would be warranted. Specifically, Plaintiff is likely to request 27 information relating to Defendant’s methods of developing its trademarks, and 28 financial terms surrounding Defendant’s advertisement and sale of products bearing 1 the Red Diamond Design. Among other things, Defendants will suffer specific 2 prejudice and harm from the public disclosure of confidential product development, 3 marketing, and financial documents. Plaintiff may also suffer specific prejudice and 4 harm from the public disclosure of its private consumption and purchasing 5 information. The parties acknowledge that this Order does not confer blanket 6 protections on all disclosures or responses to discovery and that the protection it 7 affords extends only to the limited information or items that are entitled under the 8 applicable legal principles to treatment as confidential. The parties further 9 acknowledge, as set forth in Section 17, below, that this Stipulated Protective Order 10 creates no entitlement to file confidential information under seal; Civil Local Rule 79- 11 5 sets forth the procedures that must be followed and reflects the standards that will be 12 applied when a party seeks permission from the Court to file material under seal. 13 1. Definitions: The terms defined in this Section 1 and parenthetically 14 elsewhere shall, throughout this Protective Order, have the meanings provided. 15 Defined terms may be used in the singular or plural. 16 17 18 1.1 “Action” means the litigation captioned Volcom, Inc. v. Roc Nation LLC, Case No. SACV 11-00489 JST (FFMx). 1.2 “Producing Party” means a party to the Action, or persons other 19 than a party, including non-party witnesses, that produce Confidential 20 Information or Attorney’s Eyes Only Information to the Receiving Party. 21 1.3 “Receiving Party” means the party receiving or requesting 22 production of Confidential Information or Attorney’s Eyes Only Information 23 from the Producing Party. 24 1.4 “Confidential Information” consists of information, items or 25 materials (1) which reflect or constitute customer lists, billing records, product 26 development documents, financial records, scientific product testing, product 27 formulations, and other similar items, materials and information the Producing 28 Party believes in good faith to constitute confidential information of the 2 1 Producing Party, or confidential information of some third party which the 2 Producing Party has in its possession, whether or not such information is 3 recorded or embodied in any physical medium (i.e., a document, information 4 contained in a document, equipment, information stored or displayed in 5 electronic, magnetic or other mediums, information revealed during testimony, 6 information revealed in interrogatory answers, or information revealed in any 7 other way); and (2) which is designated as Confidential Information by the 8 Producing Party in accordance with Sections six through eight of this Protective 9 Order. 10 1.5 “Attorney’s Eyes Only Information” means information (1) which 11 reflects nonpublic, proprietary product development information, financial 12 information, programs, designs, and similar information the Producing Party 13 believes in good faith to constitute confidential information of the Producing 14 Party or confidential information of some third party which the Producing Party 15 has in its possession; (2) that is so competitively sensitive that producing the 16 information justifies imposing the requirement on the opposite party that only 17 its counsel may review such information and that its testifying and consulting 18 experts are subject to objection as specified herein, whether or not any such 19 information is recorded or embodied in any physical medium (i.e., whether it is 20 a document, information contained in a document, equipment, information 21 stored or displayed in electronic, magnetic or other medium, information 22 revealed during the taking of testimony, information revealed in interrogatory 23 answers, or information revealed in any other way); and (3) which is designated 24 as Attorney’s Eyes Only Information by the Producing Party in accordance with 25 Sections six through eight of this Protective Order. 26 27 1.6 “Litigation Documents” means all pleadings, motions, discovery responses, affidavits and related papers produced or exchanged in the course of 28 3 1 the Action, or any settlement negotiations related to the Action, and all 2 transcripts of testimony given in depositions. in hearings, or at trial. (FFM) 3 1.7 “Termination” means the dismissal of the Action (whether through 4 settlement or otherwise), or the entry of final judgment and expiration of all 5 periods to appeal or seek judicial review of such judgment or dismissal. 6 2. All Confidential Information shall be used by the Receiving Party solely 7 in connection with the prosecution and defense of the Action. The Receiving Party 8 shall copy Confidential Information only to the extent reasonably necessary to 9 prosecute or defend the Action. The Receiving party shall not, directly or indirectly, 10 in whole or in part, reveal, disclose, or make available for inspection or copying any 11 Confidential Information to any individual or entity, except: 12 2.1 the Court and its personnel and any Jury impaneled in the Action; 13 2.2 court reporters, videographers, and outside translators while 14 15 present at a deposition, hearing, or trial in the Action; 2.3 the Receiving Party’s outside attorneys retained by or for the 16 Receiving Party in connection with the Action, and the support staffs of those 17 attorneys (including law clerks, legal assistants, secretaries, clerks, and copying 18 service personnel who provide copying and related litigation services at the 19 request of the outside attorneys) who have a need to know the Confidential 20 Information in connection with maintaining or defending the Action; 21 2.4 the Receiving Party’s in-house attorneys (if any) or the support 22 staffs of those attorneys (including legal assistants, secretaries and clerks, and 23 copying service personnel who provide copying and related litigation services 24 at the request of the attorneys) who have a need to know the Confidential 25 Information in connection with maintaining or defending the Action; 26 2.5 employees of the Receiving Party or other individuals representing 27 the Receiving Party who have a need to know the Confidential Information in 28 connection with maintaining or defending the Action and who have executed 4 1 this Agreement or an agreement in the form of that attached hereto as Exhibit A 2 before receiving Confidential Information; 3 2.6 any testifying or consulting expert who (a) has executed an 4 agreement in the form of that attached hereto as Exhibit A before receiving 5 Confidential Information, and (b) is not employed or retained by a competitor 6 of the Producing Party and has no present intention to be employed or retained 7 by a competitor of the Producing Party for a period of one year following 8 termination of the Action. Provided, however, that any testifying or consulting 9 expert may use Confidential Information solely for purposes of the Action and 10 for no other purposes; 11 2.7 deposition witnesses and other testifying witnesses who (a) were 12 the author or a recipient of a document containing Confidential Information and 13 (b) have executed an agreement in the form of that attached hereto as Exhibit A 14 before receiving Confidential Information; 15 2.8 any arbitrator or mediator in connection with an arbitration or 16 mediation of any issue raised in the Action, and such arbitrator’s or mediator’s 17 support staff; and 18 2.9 any other person authorized by written agreement of the Producing 19 Party and the Receiving Party or by order of the Court to receive Confidential 20 Information. 21 3. All Attorney’s Eyes Only Information shall be used by the Receiving 22 Party solely in connection with the prosecution and defense of the Action. The 23 Receiving Party shall not, directly or indirectly, in whole or in part, reveal, disclose, or 24 make available for inspection or copying any Attorney’s Eyes Only Information to any 25 individual or entity, except: 26 3.1 the Court and its personnel and any Jury impaneled in the Action; 27 3.2 court reporters, videographers, and outside translators while 28 present at a deposition, hearing, or trial in the Action; 5 1 3.3 the Receiving Party’s outside attorneys retained by or for the 2 Receiving Party in connection with the Action, and the support staffs of those 3 attorneys (including law clerks, legal assistants, secretaries, and clerks, and 4 copying service personnel who provide copying and related litigation services 5 at the request of the outside attorneys) who have a need to know the Attorney’s 6 Eyes Only Information as a result of assisting in discovery or in the preparation 7 of the Action for trial; 8 3.4 any testifying and consulting expert who (a) has executed an 9 agreement in the form of that attached hereto as Exhibit A before receiving 10 Attorney’s Eyes Only Information, and (b) has not been employed or retained by 11 a competitor of the Producing Party for a period of at least two years prior to 12 the disclosure, and commits in writing to not work or be retained by a 13 competitor of the Producing Party for a period of one year following 14 termination of the Action. Provided, however, that any testifying or consulting 15 expert may use Attorney’s Eyes Only Information solely for purposes of the 16 Action and for no other purposes; 17 3.5 deposition witnesses and other testifying witnesses who (a) were 18 the author or a recipient of a document containing Attorney’s Eyes Only 19 Information and (b) have executed an agreement in the form of that attached 20 hereto as Exhibit A before receiving Attorney’s Eyes Only Information; 21 3.6 any arbitrator or mediator in connection with an arbitration or 22 mediation of any issue raised in the Action, and such arbitrator’s or mediator’s 23 support staff; and 24 3.7 any other person authorized by written agreement of the parties or 25 by order of the Court to receive Attorney’s Eyes Only Information. 26 4. No person, other than the individuals described in Sections 2 or 3, shall 27 be permitted to attend any deposition during disclosure of Confidential Information, 28 unless the parties agree or the Court orders otherwise. 6 1 5. No person, other than the individuals described in Section 3, shall be 2 permitted to attend any deposition, hearing or trial during disclosure of Attorney’s 3 Eyes Only Information, unless the parties agree or the Court orders otherwise. 4 6. A Producing Party shall designate Confidential Information or Attorney’s 5 Eyes Only Information contained in a document by conspicuously marking the 6 document as “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY,” as the case may 7 be, on the first page of the document and thereafter on each interior page containing or 8 disclosing Confidential Information or Attorney’s Eyes Only Information. 9 7. A Producing Party shall designate Confidential Information or Attorney’s 10 Eyes Only Information contained or embodied in a thing by conspicuously marking, 11 when practicable, the thing as “CONFIDENTIAL” or “ATTORNEY’S EYES 12 ONLY,” as the case may be, or otherwise by identifying the Confidential Information 13 or Attorney’s Eyes Only Information in a separate writing such as a memo or letter. 14 15 16 8. A Producing Party may designate Confidential Information or Attorney’s Eyes Only Information disclosed during a deposition or hearing (FFM) by: 8.1 indicating on the record at the deposition or hearing (FFM) the 17 specific part of the testimony (including the entire testimony given or to be 18 given by a witness) and all or any part of any document or thing marked for 19 identification that is Confidential Information or Attorney’s Eyes Only 20 Information and subject to the provisions of this Protective Order; or 21 8.2 notifying all Receiving Parties within the earlier of (a) twenty-one 22 (21) days from the time the Producing Party receives a deposition or hearing 23 (FFM) transcript, or (b) thirty (30) days prior to the trial date, that the transcript 24 contains Confidential Information or Attorney’s Eyes Only Information and 25 specifically identifying those portions (including a witness’s entire testimony) 26 that contain Confidential Information or Attorney’s Eyes Only Information. 27 28 8.3 In the event of a designation pursuant to Section 8.2, nothing shall prevent a Receiving Party from using the testimony of an expert or consultant 7 1 who relied in his or her analysis on Confidential Information or Attorney’s Eyes 2 Only Information provided that the expert viewed the Confidential Information 3 or Attorney’s Eyes Only Information prior to the Producing Party’s designation 4 pursuant to 8.2. 5 9. A Receiving Party is not obligated to challenge the Producing Party’s 6 designation of Confidential Information or Attorney’s Eyes Only Information at the 7 time such a designation is made, and any failure to do so will not waive that party’s 8 right to request, at any time, that the Court determine whether the information satisfies 9 the definitions of Confidential Information or Attorney’s Eyes Only Information set 10 forth at Sections 1.4 and 1.5, respectively, or whether the information satisfies the 11 applicable rules with respect to protected confidential information. 12 Receiving Party challenge a Producing Party’s designation, the parties agree to 13 attempt to resolve the dispute in good faith. If the dispute cannot be resolved and the 14 Receiving Party seeks relief from the Court, the Producing Party will bear the burden 15 of proving that the designation satisfies both the substantive and procedural 16 requirements under Rules 26 and 37 of the Federal Rules of Civil Procedure. In 17 making or opposing any motion relating to the designation of confidential 18 information, the party seeking to maintain a document as confidential shall bear the 19 burden of proving that specific prejudice or harm will result if no Protective Order is 20 granted. 21 10. Should a In the event a Producing Party inadvertently fails to designate 22 Confidential Information or Attorney’s Eyes Only Information when it is first 23 produced or disclosed, that party may, at any time thereafter, designate the 24 Confidential Information or Attorney’s Eyes Only Information by producing the 25 information with the new designation, stamped with the same Bates number as the 26 information it is intended to replace. 27 information, the Receiving Party will destroy all copies of the original. The Receiving 28 Party shall not be in breach of this Protective Order for any disclosure made prior to Upon receipt of the newly designated 8 1 receipt of such notice which would otherwise have been authorized by this Order but 2 for the subsequent designation. 3 11. Any party may move the Court to amend this Protective Order on 5 4 business days’ notice to all parties to the Action and the Producing Party that 5 produced the information in question (or such shorter notice as the Court may 6 require). In any proceedings on such a motion, the prior existence of this Protective 7 Order shall not affect the burden of persuasion that would rest upon any proponent of 8 a protective provision. The Court, on its own motion, may amend this Protective 9 Order. 10 12. Nothing in this Protective Order shall bar or otherwise restrict any 11 attorney from rendering legal advice to his or her client with respect to this litigation 12 and referring generally to Confidential Information or Attorney’s Eyes Only 13 Information or relying upon the attorney’s own examination of Confidential 14 Information or Attorney’s Eyes Only Information. 15 13. If any Receiving Party is required by law to disclose some portion of the 16 Confidential Information or Attorney’s Eyes Only Information other than as permitted 17 by this Protective Order: 18 13.1 the Receiving Party will inform the Producing Party who originally 19 disclosed such Confidential Information or Attorney’s Eyes Only Information of 20 the requirement as soon as practicable after receiving notice of the requirement. 21 The Receiving Party will further inform the Producing Party which Confidential 22 Information or Attorney’s Eyes Only Information it is required to disclose. 23 24 13.2 The Receiving Party shall inform the requiring entity of the Receiving Party’s obligations set forth in this Protective Order. 25 13.3 The Producing Party may seek a Protective Order with 26 confidentiality provisions identical to this Protective Order. The Receiving 27 Party shall not oppose the Producing Party’s attempts to obtain the Protective 28 9 1 Order in any fashion, including assisting any third party in opposing the entry 2 of such Protective Order. 3 13.3.1 If the Producing Party elects to seek a Protective Order 4 under the above section 14.3, it shall notify the Receiving Party within 5 the earlier of (a) twenty (20) days after the Receiving Party sends its 6 notice or (b) two (2) business days before the deadline for complying 7 with the requirement but after the Receiving Party sends its notice. 8 13.3.2 If the Producing Party elects not to seek a Protective 9 Order, or if the Receiving Party receives no notice under the above 10 section 14.3.1 within the time established in Section 14.3.1 of this 11 Protective Order, the Receiving Party shall have the right to disclose the 12 required Confidential Information or Attorney’s Eyes Only Information. 13 13.3.3 If the Producing Party is unable to obtain a Protective 14 Order satisfactory to the Producing Party after exhausting all applications 15 for writs of mandamus and all interlocutory appeals from the denial of 16 such a Protective Order, the Receiving Party shall have the right to 17 disclose the required Confidential Information or Attorney’s Eyes Only 18 Information. 19 14. The restrictions of the Protective Order shall not apply to, and this Order 20 shall not be construed to prevent, any Receiving Party from making use of or 21 disclosing information that: 22 14.1 was lawfully in its possession prior to receipt of such information 23 from a Producing Party, as shown by its written records dated prior to the 24 Producing Party’s disclosure; 25 14.2 appears in any published material available to the Producing 26 Party’s trade or business, available to the public, or otherwise becomes 27 available within the public domain, other than as a consequence of the 28 Receiving Party’s breach of any obligation not to disclose the information; or 10 1 14.3 it lawfully obtains subsequent to the Producing Party’s disclosure, 2 without obligation of confidence, from a source or sources other than the 3 Producing Party; 4 regardless of whether the same has been designated as Confidential Information or 5 Attorney’s Eyes Only Information. 6 15. This Protective Order shall not be construed as a waiver by the parties of 7 any objection which might be raised as to the admissibility of any evidence. This 8 Protective Order shall be without prejudice to the rights of any person to oppose 9 production of any information on any proper ground. 10 16. All Litigation Documents to be filed with the Court and designated by 11 either party as containing Confidential Information or Attorney’s Eyes Only 12 Information or referring to any previously designated Confidential Information or 13 Attorney’s Eyes Only Information shall be filed in accordance with Local Rule 79-5, 14 and the party filing any such Litigation Document shall move the Court to file the 15 document under seal. The party seeking to have the document filed under seal shall 16 present a written application and proposed order to the judge, along with the document 17 submitted for filing under seal. The proposed order shall address both the sealing of 18 the application and order itself, if appropriate. The original and judge’s copy of the 19 document shall be sealed in separate envelopes with a copy of the title page attached 20 to the front of the envelopes. The Court’s ruling on the motion shall be determinative 21 of the filing status of the Litigation Document. Where possible and appropriate, upon 22 Court Order, the filing party shall file redacted versions of Litigation Documents in 23 the public docket so as to exclude Confidential Information or Attorney’s Eyes Only 24 Information. 25 17. This paragraph addresses the handling of documents by authorized 26 recipients other than the Court or its employees. Documents filed with the Court shall 27 be handled according to Local Rule 79-5. All documents and things designated as 28 Confidential Information or Attorney’s Eyes Only Information shall be maintained at 11 1 all times in the custody of individuals described in Sections 2 or 3, respectively. 2 Within 60 days after Termination of the Action, the original and all copies of each 3 document and thing produced to a Receiving Party which contains Confidential 4 Information or Attorney’s Eyes Only Information shall be returned to the Producing 5 Party or destroyed. Notwithstanding the foregoing: (1) nothing in this Section shall 6 require the destruction of information that resides on server backup tapes and other 7 similar archival records that are generally inaccessible without engaging in affirmative 8 steps to restore such documents as long as such computer archives were made during 9 the ordinary course of business; (2) attorney work product, attorney client 10 communications, and information derived from documents designated by another 11 party or nonparty as Confidential Information or Attorney’s Eyes Only Information 12 may be retained by the Receiving Party (if authorized to view them) and counsel for 13 the Receiving Party (if authorized to view them); and (3) counsel for the Receiving 14 Party may retain one copy of any notes, memoranda, or other documents that contain 15 excerpts of Confidential Information or Attorney’s Eyes Only Information. Testifying 16 and consulting experts may not retain (a) documents designated by another party or 17 nonparty as Confidential Information or Attorney’s Eyes Only Information, (b) 18 attorney work product, attorney client communications, and information derived from 19 documents designated by another party or nonparty as Confidential Information or 20 Attorney’s Eyes Only Information, or (c) notes, memoranda, or other documents that 21 contain excerpts of Confidential Information or Attorney’s Eyes Only Information 22 designated by another party or nonparty, including without limitation copies of their 23 expert reports, if any. Upon completion of destruction, counsel for the Receiving 24 Party shall promptly certify the destruction in writing to the Producing Party. 25 18. Insofar as its provisions restrict the use or disclosure of any Confidential 26 Information or Attorney’s Eyes Only Information, this Protective Order shall remain 27 binding on the parties after Termination of the Action, and the Court shall retain 28 jurisdiction of all persons and parties bound by this Protective Order. 12 1 19. With respect to the handling of Confidential Information or Attorney’s 2 Eyes Only Information by the Court, any documents introduced at trial will be 3 presumptively available to all members of the public, including the press, unless good 4 cause is shown to the District Judge in advance of the trial to proceed otherwise. 5 Nothing in this Order shall affect the admissibility into evidence of Confidential 6 Information or Attorney’s Eyes Only Information, or the manner in which court 7 hearings or the trial of this action are to be conducted. 8 IT IS SO ORDERED: 9 10 11 Dated: January 20, 2012 /S/ FREDERICK F. MUMM HON. FREDERICK F. MUMM UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 1 Volcom, Inc. v. Roc Nation, LLC U.S. District Court, Central District of California, Southern Division Case No. SACV 11-00489 JST (FFMx) 2 3 Exhibit A 4 5 6 I, the undersigned, have reviewed the attached Protective Order entered in the above-captioned case (the “Protective Order”), and I acknowledge its terms. 7 8 Having been advised to seek my own counsel before doing so, I agree to be bound by 9 the terms of the Protective Order and submit to the jurisdiction of the United States 10 District Court for the Central District of California, or any other Court of competent 11 12 jurisdiction, for purposes of ensuring compliance with the terms of the Protective 13 Order. 14 15 16 Signed this ____ day of __________________________, 2012. 17 18 19 _________________________________ 20 21 22 23 24 25 26 27 28 14

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